Opinion
November 13, 1984
Appeal from the Supreme Court, Suffolk County (Geiler, J.).
Judgment modified, on the law, by adding thereto a provision declaring that the ordinance in question is valid and dismissing the plaintiff's complaint in all other respects. As so modified, judgment affirmed, with one bill of costs to respondents.
Special Term erred in dismissing plaintiff's complaint without declaring the rights of the parties ( Lanza v Wagner, 11 N.Y.2d 317, 334, app dsmd 371 U.S. 74, cert den. 371 U.S. 901).
Plaintiff's receipt of actual notice of, and its appearance at, the public hearing constituted a waiver of the requirement that notice be given in strict accordance with the Code of the Town of Brookhaven (see Avelli v Town of Babylon, 54 Misc.2d 662; North Shore Beach Prop. Owners Assn. v Town of Brookhaven, 115 N.Y.S.2d 670). Weinstein, J.P., Brown, Boyers and Eiber, JJ., concur.